Gross v. Astrue
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the relief sought by Plaintiff in her Complaint and Brief in Support of Complaint is DENIED; Docs. 1, 18. IT IS ORDERED that a separate judgment be entered incorporating this Memorandum and Order. Signed by Magistrate Judge Noelle C. Collins on 4/24/2014. (NCL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JANICE A. GROSS,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Case No. 4:12CV1312NCC
MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision
of the Commissioner denying the application of Janice A. Gross (Plaintiff) for Disability
Insurance Benefits (DIB) under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401 et
seq., and for Supplemental Security Income (SSI) under Title XVI of the Act, 42 U.S.C. §§ 1381
et seq. Plaintiff has filed a brief in support of the Complaint. Doc. 18. Defendant has filed a
brief in support of the Answer. Doc. 23. The parties have consented to the jurisdiction of the
undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c). Doc. 25.
Plaintiff filed her applications for DIB and SSI alleging a disability onset date of March
25, 2006. Tr. 9. Plaintiff’s applications were denied and she requested a hearing before an
Administrative Law Judge (ALJ). Tr. 64-69. After a hearing, in a decision dated September 16,
Carolyn W. Colvin became Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, she should be substituted for
Michael J. Astrue as the defendant. No further action need be taken to continue this suit by
reason of the last sentence of § 205(g) of the Act.
2010, the ALJ found Plaintiff not disabled. Tr. 9-19. Plaintiff filed a request for review with the
Appeals Council, which denied Plaintiff’s request. Tr. 1-3. As such, the ALJ’s decision stands
as the final decision of the Commissioner.
Under the Social Security Act, the Commissioner has established a five-step process for
determining whether a person is disabled. 20 C.F.R. §§ 416.920, 404.1529. “‘If a claimant fails
to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is
determined to be not disabled.’” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting
Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in “substantial gainful activity” to qualify for disability benefits.
20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant must have a severe impairment. 20
C.F.R. §§ 416.920(c), 404.1520(c). The Social Security Act defines “severe impairment” as
“any impairment or combination of impairments which significantly limits [claimant’s] physical
or mental ability to do basic work activities.” Id. “The sequential evaluation process may be
terminated at step two only when the claimant’s impairment or combination of impairments
would have no more than a minimal impact on [his or] her ability to work.” Page v. Astrue, 484
F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir.
2001) (citing Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir. 1996)).
Third, the ALJ must determine whether the claimant has an impairment which meets or
equals one of the impairments listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d);
pt. 404, subpt. P, app. 1. If the claimant has one of, or the medical equivalent of, these
impairments, then the claimant is per se disabled without consideration of the claimant’s age,
education, or work history. Id.
Fourth, the impairment must prevent the claimant from doing past relevant work. 20
C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at this fourth step to
establish his or her Residual Functional Capacity (RFC). See Steed v. Astrue, 524 F.3d 872, 874
n.3 (8th Cir. 2008) (“Through step four of this analysis, the claimant has the burden of showing
that she is disabled.”); Eichelberger, 390 F.3d at 590-91; Masterson v. Barnhart, 363 F.3d 731,
737 (8th Cir. 2004); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). The ALJ will
review a claimant’s RFC and the physical and mental demands of the work the claimant has done
in the past. 20 C.F.R. § 404.1520(f).
Fifth, the severe impairment must prevent the claimant from doing any other work. 20
C.F.R. §§ 416.920(g), 404.1520(g).
At this fifth step of the sequential analysis, the
Commissioner has the burden of production to show evidence of other jobs in the national
economy that can be performed by a person with the claimant’s RFC. See Steed, 524 F.3d at
874 n.3; Young, 221 F.3d at 1069 n.5. If the claimant meets these standards, the ALJ will find
the claimant to be disabled. “The ultimate burden of persuasion to prove disability, however,
remains with the claimant.” Id. See also Harris v. Barnhart, 356 F.3d 926, 931 n.2 (8th Cir.
2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377 F.3d 801,
806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to demonstrate RFC
remains on the claimant, even when the burden of production shifts to the Commissioner at step
five.”); Charles v. Barnhart, 375 F.3d 777, 782 n.5 (8th Cir. 2004) (“[T]he burden of production
shifts to the Commissioner at step five to submit evidence of other work in the national economy
that [the claimant] could perform, given her RFC.”). Even if a court finds that there is a
preponderance of the evidence against the ALJ’s decision, that decision must be affirmed if it is
supported by substantial evidence. See Clark v. Heckler, 733 F.2d 65, 68 (8th Cir. 1984).
“Substantial evidence is less than a preponderance but is enough that a reasonable mind would
find it adequate to support the Commissioner’s conclusion.” Krogmeier v. Barnhart, 294 F.3d
1019, 1022 (8th Cir. 2002). See also Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
Bland v. Bowen, 861 F.2d 533, 535 (8th Cir. 1988), the Eighth Circuit Court of Appeals held:
[t]he concept of substantial evidence is something less than the weight of
the evidence and it allows for the possibility of drawing two inconsistent
conclusions, thus it embodies a zone of choice within which the Secretary
may decide to grant or deny benefits without being subject to reversal on
See also Lacroix v. Barnhart, 465 F.3d 881, 885 (8th Cir. 2006) (“[W]e may not reverse merely
because substantial evidence exists for the opposite decision.”) (quoting Johnson v. Chater, 87
F.3d 1015, 1017 (8th Cir. 1996)); Hartfield v. Barnhart, 384 F.3d 986, 988 (8th Cir. 2004)
(“[R]eview of the Commissioner’s final decision is deferential.”).
It is not the job of the district court to re-weigh the evidence or review the factual record
de novo. See Cox, 495 F.3d at 617; Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005);
McClees v. Shalala, 2 F.3d 301, 302 (8th Cir. 1993); Murphy v. Sullivan, 953 F.2d 383, 384 (8th
Cir. 1992). Instead, the district court must simply determine whether the quantity and quality of
evidence is enough so that a reasonable mind might find it adequate to support the ALJ’s
conclusion. See Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing McKinney v. Apfel,
228 F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of the ALJ, who is the
fact-finder. See Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987). See also Onstead v.
Sullivan, 962 F.2d 803, 804 (8th Cir. 1992) (holding that an ALJ’s decision is conclusive upon a
reviewing court if it is supported by “substantial evidence”). Thus, an administrative decision
which is supported by substantial evidence is not subject to reversal merely because substantial
evidence may also support an opposite conclusion or because the reviewing court would have
decided differently. See Krogmeier, 294 F.3d at 1022. See also Eichelberger, 390 F.3d at 589;
Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000) (quoting Terrell v. Apfel, 147 F.3d 659, 661
(8th Cir. 1998)); Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir. 2001).
To determine whether the Commissioner’s final decision is supported by substantial
evidence, the court is required to review the administrative record as a whole and to consider the
following factors. They are:
(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s
physical activity and impairment;
(5) The corroboration by third parties of the claimant’s physical
(6) The testimony of vocational experts based upon proper hypothetical
questions which fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980); Cruse v.
Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989).
Additionally, an ALJ’s decision must comply “with the relevant legal requirements.”
Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008).
The Social Security Act defines disability as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. § 416(i)(1)(A); 42 U.S.C. § 423(d)(1)(A). “While the
claimant has the burden of proving that the disability results from a medically determinable
physical or mental impairment, direct medical evidence of the cause and effect relationship
between the impairment and the degree of claimant’s subjective complaints need not be
produced.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). When evaluating evidence
of pain, the ALJ must consider:
(1) the claimant’s daily activities;
(2) the subjective evidence of the duration, frequency, and intensity of the
(3) any precipitating or aggravating factors;
(4) the dosage, effectiveness, and side effects of any medication; and
(5) the claimant’s functional restrictions.
Baker v. Sec’y of Health & Human Servs., 955 F.2d. 552, 555 (8th Cir. 1992); Polaski, 739 F.2d
The absence of objective medical evidence is just one factor to be considered in
evaluating the plaintiff’s credibility. Id. The ALJ must also consider the plaintiff’s prior work
record, observations by third parties and treating and examining doctors, as well as the plaintiff’s
appearance and demeanor at the hearing. See Polaski, 739 F.2d at 1322; Cruse, 867 F.2d at
The ALJ must make express credibility determinations and set forth the inconsistencies in
the record which cause him to reject the plaintiff’s complaints. See Guilliams, 393 F.3d at 801;
Masterson, 363 F.3d at 738; Lewis v. Barnhart, 353 F.3d 642, 647 (8th Cir. 2003); Hall v.
Chater, 62 F.3d 220, 223 (8th Cir. 1995).
It is not enough that the record contains
inconsistencies; the ALJ must specifically demonstrate that he considered all of the evidence.
Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992); Butler v. Sec’y of Health & Human
Servs., 850 F.2d 425, 429 (8th Cir. 1988). The ALJ, however, “need not explicitly discuss each
Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir. 2004). See also Steed,
524 F.3d at 876 (citing Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000)). The ALJ need only
acknowledge and consider those factors.
Although credibility determinations are
primarily for the ALJ and not the court, the ALJ’s credibility assessment must be based on
substantial evidence. See Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988); Millbrook v.
Heckler, 780 F.2d 1371, 1374 (8th Cir. 1985).
RFC is defined as what the claimant can do despite his or her limitations, 20 C.F.R. §
404.1545(a)(1), and includes an assessment of physical abilities and mental impairments. 20
C.F.R. § 404.1545(b)-(e). The Commissioner must show that a claimant who cannot perform his
or her past relevant work can perform other work which exists in the national economy. See
Karlix v. Barnhart, 457 F.3d 742, 746 (8th Cir. 2006); Nevland, 204 F.3d at 857 (citing McCoy
v. Schweiker, 683 F.2d 1138, 1146-47 (8th Cir. 1982) (en banc)). The Commissioner must first
prove that the claimant retains the RFC to perform other kinds of work. See Goff, 421 F.3d at
790; Nevland, 204 F.3d at 857. The Commissioner has to prove this by substantial evidence.
Warner v. Heckler, 722 F.2d 428, 431 (8th Cir. 1983). Second, once the plaintiff’s capabilities
are established, the Commissioner has the burden of demonstrating that there are jobs available
in the national economy that can realistically be performed by someone with the plaintiff’s
qualifications and capabilities. See Goff, 421 F.3d at 790; Nevland, 204 F.3d at 857.
To satisfy the Commissioner’s burden, the testimony of a vocational expert (VE) may be
used. An ALJ posing a hypothetical to a VE is not required to include all of a plaintiff’s
limitations, but only those which he finds credible. See Goff, 421 F.3d at 794 (“[T]he ALJ
properly included only those limitations supported by the record as a whole in the
hypothetical.”); Rautio, 862 F.2d at 180.
Use of the Medical-Vocational Guidelines is
appropriate if the ALJ discredits the plaintiff’s subjective complaints of pain for legally
sufficient reasons. See Baker v. Barnhart, 457 F.3d 882, 894-95 (8th Cir. 2006); Carlock v.
Sullivan, 902 F.2d 1341, 1343 (8th Cir. 1990); Hutsell v. Sullivan, 892 F.2d 747, 750 (8th Cir.
The issue before the court is whether substantial evidence supports the Commissioner’s
final determination that Plaintiff was not disabled. See Onstead, 962 F.2d at 804. Thus, even if
there is substantial evidence that would support a decision opposite to that of the Commissioner,
the court must affirm her decision as long as there is substantial evidence in favor of the
Commissioner’s position. See Cox, 495 F.3d at 617; Krogmeier, 294 F.3d at 1022.
Plaintiff testified at the hearing that she was 5’2” tall and weighed 190 pounds; she could
not sit 6 hours in an 8-hour day; she spent most days laying down; on a good day, she would lie
down two to three times, fifteen to twenty minutes at a time; on other days she would lie down
two to five hours; she had constant neck, back, hip, and knee pain; despite taking medication, she
had pain; she had fatigue from fibromyalgia; three days a week she had so much pain she could
not get out of bed; she had difficulty sitting in regular chairs; and she could stand about twenty
minutes before needing to sit down. Tr. 32-47. Plaintiff claimed she was disabled due to
disorders of the spine, joint disease, fibromyalgia, and an emotional/mental impairment.
The ALJ found Plaintiff met the insured status requirements through December 31, 2012;
she had not engaged in substantial gainful activity since her alleged onset date, March 25, 2006;
she had the severe impairments of disorders of the spine, degenerative joint disease, and
fibromyalgia; she did not have a severe emotional/mental impairment; Plaintiff did not have an
impairment or combination of impairments that met or medically equaled a listed impairment;
she had the RFC to perform the full range of sedentary work as defined in the Act2; Plaintiff
could perform her past relevant work as a collector, which is ordinarily performed at the
sedentary level in the national economy; and, therefore, Plaintiff was not disabled.
Plaintiff argues the ALJ erred in determining her RFC in that he failed to impose
additional limitations arising out of her physical impairments and by conducting an improper
analysis of the medical evidence, as the medical evidence supported her claims regarding the
20 C.F.R. ' 404.1567(a) defines sedentary work as follows: ASedentary work involves lifting no
more than 10 pounds at a time and occasionally lifting or carrying articles like docket files,
ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a
certain amount of walking and standing is often necessary in carrying out job duties. Jobs are
sedentary if walking and standing are required occasionally and other sedentary criteria are met.@
Indeed, SSR 85-15, 198520 C.F.R. ' 404.1567(a) defines sedentary work as follows: ASedentary
work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying
articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one
which involves sitting, a certain amount of walking and standing is often necessary in carrying
out job duties. Jobs are sedentary if walking and standing are required occasionally and other
sedentary criteria are met.@
severity of her physical limitations, including pain and fatigue. Plaintiff further claims the ALJ
erred in failing to make sufficiently specific findings regarding her credibility and by failing to
follow the applicable case law.
For the following reasons, the court finds that Plaintiff’s
allegations are without merit and that the ALJ’s decision is supported by substantial evidence.
The court will first consider the ALJ=s credibility determination, as the ALJ=s evaluation
of Plaintiff=s credibility was essential to the ALJ=s determination of other issues, including
Plaintiff=s RFC. See Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010) (A[The plaintiff] fails
to recognize that the ALJ's determination regarding her RFC was influenced by his determination
that her allegations were not credible.@) (citing Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir.
2005)); 20 C.F.R. §§ 404.1545, 416.945 (2010). As set forth more fully above, the ALJ=s
credibility findings should be affirmed if they are supported by substantial evidence on the
record as a whole; a court cannot substitute its judgment for that of the ALJ. Guilliams v.
Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Hutsell, 892 F.2d at 750; Benskin, 830 F.2d at 882.
To the extent that the ALJ did not specifically cite Polaski, other case law, and/or Regulations
relevant to a consideration of Plaintiff=s credibility, this is not necessarily a basis to set aside an
ALJ=s decision where the decision is supported by substantial evidence. Randolph v. Barnhart,
386 F.3d 835, 842 (8th Cir. 2004); Wheeler v. Apfel, 224 F.3d 891, 895 n.3 (8th Cir. 2000);
Reynolds v. Chater, 82 F.3d 254, 258 (8th Cir. 1996); Montgomery v. Chater, 69 F.3d 273, 275
(8th Cir. 1995).
Additionally, an ALJ need not methodically discuss each Polaski factor if the factors are
acknowledged and examined prior to making a credibility determination; where adequately
explained and supported, credibility findings are for the ALJ to make. See Lowe v. Apfel, 226
F.3d 969, 972 (8th Cir. 2000). See also Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004)
(AThe ALJ is not required to discuss each Polaski factor as long as the analytical framework is
recognized and considered.@); Strongson, 361 F.3d at 1072; Brown v. Chater, 87 F.3d 963, 966
(8th Cir. 1996). In any case, A[t]he credibility of a claimant=s subjective testimony is primarily
for the ALJ to decide, not the courts.@ Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir.
2001). AIf an ALJ explicitly discredits the claimant=s testimony and gives good reason for doing
so, [a court] will normally defer to the ALJ=s credibility determination.@ Gregg v. Barnhart, 354
F.3d 710, 714 (8th Cir. 2003). See also Halverson v. Astrue, 600 F.3d 922, 932 (8th Cir. 2010);
Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). For the following reasons, the court finds
that the ALJ’s credibility determination is based on substantial evidence.
First, the ALJ considered that diagnostic testing failed to support Plaintiff’s claims
regarding the severity of her impairments.
Imaging from August 2006, showed no active
pulmonary disease, old right-sided rib fracture deformities, and old lower thoracic vertebral body
fracture. Tr. 365. A November 2006 MRI showed multilevel spondylosis and chronic cord
compression in the cervical spine, without cord edema or syrinx.
Other testing showed a
compression deformity at T12, degenerative changes at T12-L1 and L1-L2, and scoliatic
curvature of the thoracic spine. Tr. 364. A February 2007 MRI of the hips showed minimal
increased signal in the areas of the greater trochanter, bilaterally, which was adjacent to tissue,
not in the bone, and “of questionable significance.” Tr. 455. A May 2007 MRI of the lumbar
spine showed postoperative changes at L5 and S1; some prominent right disc protrusion seen on
a previous exam was not seen. Tr. 466. October 2007 imaging showed Plaintiff’s fusion at L5S1 was unchanged and without evidence of acute complication; her chronic compression at T12
was unchanged; there was no new loss of vertebral body height; there was mild degenerative disc
space narrowing, and facet arthrosis at several levels was unchanged. Tr. 457. June 2008 EMG
testing noted moderate left carpal tunnel syndrome, for which surgery was recommended. Tr.
347. A September 2008 MRI of the cervical spine showed prominent disc protrusions. Imaging
of the lumbar spine showed no significant change since Plaintiff’s previous MRI. Tr. 458-59.
April 2009 imaging of Plaintiff’s left knee showed mild extensor mechanism strain, trace
marrow edema, severe patellofemoral chondropathy, joint effusion, and no meniscal or cruciate
ligament tear. Tr. 539. Imaging of the right knee showed degenerative changes, with moderate
to severe patellofemoral and medial compartmental chondropathy, no meniscal or cruciate
ligament tear, mild extensor mechanism strain, and joint effusion. Tr. 541.
An April 2009 MRI of the right knee showed mild extensor mechanism strain, trace
marrow edema, severe patellofemoral chondropathy, joint effusion, and no meniscal or cruciate
May 2010 MRIs showed, in regard to the cervical spine, mild
generalized disc bulge at C3-C4-5, moderate impingement of the cervical cord, mild left
foraminal narrowing at C6-C7, and minimal midline disc protrusions at C2-C3 and C7-T1,
without impingement on the cord. Tr. 576. As for the lumbar spine, moderate generalized disc
bulge and marked bilateral facet arthropathy were seen at L4-L5, and there was mild bilateral
foraminal stenosis at L5-S1.
Despite Plaintiff’s argument to the contrary, the
Regulations explain that an ALJ should consider objective evidence when considering a
See 20 C.F.R. §§ 404.1529(c)(1-(2), 416.929(c)(1)-(2); Gonzalez v.
Barnhart, 465 F.3d 890, 895 (8th Cir. 2006) (ALJ is entitled to make factual determination that
claimant’s subjective complaints are not credible in light of objective medical evidence to
contrary); Forte v. Barnhart, 377 F.3d 892, (8th Cir. 2004) (lack of objective medical evidence is
factor to be considered by ALJ).
Second, the ALJ considered the medical findings of doctors who treated and examined
He considered, in particular, that there was a lack of significant findings on
longitudinal examinations. Tr. 17-18. Indeed, on June 1, 2006, Terry Moore, M.D., reported
that Plaintiff had tenderness in the back, right wrist, knee, and other areas, but Dr. Moore noted
no evidence of swelling and reported that Plaintiff had full range of motion in her joints and both
her upper and lower extremities, and that Plaintiff’s sensation was intact. Tr. 256. Although
Peter Lamble, M.D., reported, in October and November 2006, that Plaintiff had tenderness at
fibromyalgia trigger points, Plaintiff had no obvious swelling, redness or warmth of the wrist
joints, bilaterally, and she had intact sensation of the palms. Tr. 412-13. Although Plaintiff
complained of neck, back, and joint pain when presenting to Peter Yoon, M.D., on December 7,
2006, Dr. Yoon reported that Plaintiff had 5/5 strength, intact sensation, and no lumbar spasms.3
Tr. 431-34. In January 2007, Plaintiff told Dr. Yoon she was not in as much pain. Tr. 435.
When Plaintiff presented in May 2008, complaining of numbness and tingling in her left arm and
hand, examination showed no vertebral tenderness to palpation or with forward flexion/lateral
rotation of the neck; that her extremities were without edema; and that her sensory exam was
intact. Tr. 420.
When Plaintiff presented to Nabil Ahmad, M.D., in October 2008, for neck and low back
pain, Dr. Ahmad reported examination was consistent with “mild” pain symptoms with both
felexion and extension; there was no evidence of palpable tenderness; Plaintiff had decreased
pinprick perception; and she had functional gate and full strength of the upper and lower
extremities. Tr. 488-89. When Plaintiff presented in January 2009, complaining of increasingly
The court notes that Dr. Yoon’s records of this date are not totally legible, but Plaintiff does not
take issue with the ALJ’s characterization of them as stated above.
severe low back and neck pain, diffuse pain was noted; there were no gross abnormalities in
Plaintiff’s back on examination; she was without radicular pain, peripheral neuropathy or
peripheral claudication; and records of this date do not reference a limitation in Plaintiff’s range
of motion. Tr. 521-22. In April 2009, when Plaintiff presented for bilateral knee pain, which she
had for two years, Timothy Galbraith, M.D., reported that, on examination, Plaintiff’s sensation
was intact; she had no tenderness to palpation, no swelling, and full strength and range of motion
in the hips, ankles, and feet; and her muscle tone was normal. Tr. 543. When Plaintiff presented
to Matthew Tiefenbrunn, M.D., in December 2009, reporting pain so bad at times she wanted to
commit suicide, Dr. Tiefenbrunn reported that, upon examination, Plaintiff had subjective diffuse
stiffness and multiple trigger points in the trunk and upper back region. Dr. Tiefenbrunn,
however, noted no obvious joint abnormalities or swelling, and reported that Plaintiff was
negative for a gait disturbance, psychiatric symptoms, and “bond/joint symptoms and weakness.”
Tr. 557-59. Although an ALJ may not disregard a claimant=s subjective allegations because they
are not fully supported by objective medical evidence, an ALJ may properly discount subjective
complaints if inconsistencies exist in the record as a whole. Gonzalez v. Barnhart, 465 F.3d 890,
895 (8th Cir. 2006) (citing Ramirez v. Barnhart, 292 F.3d 576, 581 (8th Cir. 2002)); 20 C.F.R. '
' 404.1529(c), 416.929(c).
Third, the ALJ considered that Plaintiff had significant numerous breaks in her medical
treatment. Tr. 17. As further considered by the ALJ, after Plaintiff’s surgeries in late 2006 and
early 2007 for spine problems, she did not follow up for further treatment until 2008. Tr. 13,
332, 342. After Plaintiff saw Dr. Yoon, on October 4, 2007, complaining of neck and back pain,
she did not seek treatment again until January 2008, when she saw Dr. Tiefenbrunn. Tr. 423.
After that, she did not present again until May 7, 2008. Tr. 420. A lack of regular treatment for
an alleged disabling condition detracts from a claimant=s credibility. See Roberts v. Apfel, 222
F.3d 466, 469 (8th Cir. 2000) (citing Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir. 1990));
Comstock v. Chater, 91 F.3d 1143, 1146-46 (8th Cir. 1996) (citing Benskin, 830 F.2d at 884);
Polaski, 739 F.2d at 1322. Additionally, a lack of objective medical evidence contradicts a
claimant’s allegations of disabling pain. Comstock, 91 F.3d at 1147 (citing Smith v. Shalala, 979
F.2d 1371, 1374 (8th Cir. 1993).
Fourth, the ALJ considered Plaintiff’s daily activities, including that, at least on good
days, she could care for a pet, prepare meals and/or reheat leftovers, perform some household
chores, drive a vehicle, and shop in stores. Tr. 18, 182-89. Consistent with the case law, the
ALJ considered that, while Plaintiff’s ability to engage in such activity was not entirely
dispositive, her ability to do so was at odds with her being found disabled.
undersigned appreciates that a claimant need not be bedridden before he or she can be
determined to be disabled, Plaintiff's daily activities can nonetheless be seen as inconsistent with
her subjective complaints of a disabling impairment and may be considered in judging the
credibility of complaints.
Eichelberger, 390 F.3d at 590 (holding that the ALJ properly
considered that the plaintiff watched television, read, drove, and attended church upon
concluding that subjective complaints of pain were not credible); Dunahoo v. Apfel, 241 F.3d
1033, 1038 (8th Cir. 2001); Onstead, 962 F.2d at 805; Murphy v. Sullivan, 953 F.2d 383, 386
(8th Cir. 1992); Benskin v. Bowen, 830 F.2d 878, 883 (8th Cir. 1987); Bolton v. Bowen, 814
F.2d 536, 538 (8th Cir. 1987). Indeed, the Eighth Circuit holds that allegations of disabling Apain
may be discredited by evidence of daily activities inconsistent with such allegations.@ Davis v.
Apfel, 239 F.3d 962, 967 (8th Cir. 2001). AInconsistencies between [a claimant=s] subjective
complaints and [his] activities diminish [his] credibility.@ Goff v. Barnhart, 421 F.3d 785, 792
(8th Cir. 2005) (citing Riggins v. Apfel, 177 F.3d 689, 692 (8th Cir. 1999)). See also Haley v.
Massanari, 258 F.3d 742, 748 (8th Cir. 2001); Nguyen v. Chater, 75 F.3d 429, 439-41 (8th Cir.
1996) (holding that a claimant=s daily activities, including visiting neighbors, cooking, doing
laundry, and attending church, were incompatible with disabling pain and affirming denial of
benefits at the second step of analysis).
Fifth, the ALJ considered that, although Plaintiff had surgeries on her lumbar and
cervical spine, records reflected that Plaintiff made good recoveries and achieved good pain
relief within a relatively short time after each surgery. Tr. 18, 436, 440. Specifically, after
December 2006 cervical discectomy and fusion surgery, Plaintiff reported, in February 2007,
that she had good pain relief (Tr. 436), and, in June 2007, that she was not in as much pain (Tr.
435). Also, Dr. Yoon reported, in June 2007, that Plaintiff was “getting a lot better and had good
pain relief. Tr. 440.
Sixth, the ALJ considered that Plaintiff’s poor earning record did not suggest, but for her
alleged impairments, she would be working, especially at a level constituting substantial gainful
activity. Tr. 18. Indeed, Plaintiff’s SSA earnings record showed that she had minimal or no
earnings in many years. Tr. 143. An ALJ may discount a claimant=s credibility based upon her
poor work record. See Ramirez, 292 F.3d 576, 581 (8th Cir. 2002) (holding that in making a
credibility determination, the ALJ properly weighed heavily claimant=s poor work record and the
fact that her prospective SSI benefits would exceed the amount she was able to earn while
working; this evidence suggests that a claimant is not motivated to work); Pearsall v. Massanari,
274 F.3d 1211, 1218 (8th Cir. 2001); Comstock v. Chater, 91 F.3d 1143, 1147 (8th Cir. 1996)
(holding that a claimant=s prior work history characterized by fairly low earnings and significant
breaks in employment casts doubt on his credibility); Pena v. Chater, 76 F.3d 906, 908 (8th Cir.
1996) (holding that a sporadic work record failed to support a claimant=s credibility). A long and
continuous past work record with no evidence of malingering is a factor supporting credibility of
assertions of disabling impairments. See Allen v. Califano, 613 F.2d 139, 147 (6th Cir. 1980).
For the same reason, an ALJ may discount a claimant=s credibility based upon her poor work
record.4 See Ownbey v. Sullivan, 5 F.3d 342, 345 (8th Cir. 1993).
Seventh, the ALJ considered that Plaintiff’s doctors reported that Plaintiff should
exercise. Tr. 12, 15. In this regard, Plaintiff was encouraged to exercise regularly by Dr. Moore.
Tr. 257. When he reviewed Plaintiff’s knee MRIs, Dr. Galbraith noted, in June 2009, that
Plaintiff “will join gym for exercise program.” Tr. 551. See Hacker v. Barnhart, 459 F.3d 934,
938 (8th Cir. 2006) (affirming where ALJ considered treating doctor admonished claimant for
failing to exercise).
Eighth, the court notes Plaintiff was not always compliant with doctors’
recommendations. Notably, Dr. Tiefenbrunn reported, in December 2009, that Plaintiff was not
exercising regularly and not following the prescribed diet. Tr. 557.
Ninth, while the ALJ found Plaintiff’s allegations regarding the severity of her
impairments not totally credible, he did limit her to sedentary work, thereby acknowledging she
had limitations. See Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005) (ALJ’s limiting
Although the court recognizes that the ALJ may consider a claimant=s financial
motivation to qualify for benefits while assessing the credibility of a claimant=s subjective
complaints, the court further recognizes that such motivation should not be dispositive, because
all disability claimants are financially motivated to some extent. See Ramirez v. Barnhart, 292
F.2d 576, 582 (8th Cir. 2002) (citing Dodd v. Sullivan, 963 F.2d 171, 172 (8th Cir. 1992); Fox v.
Apfel, 980 F. Supp. 312, 317 (S.D. Iowa 1997)).
claimant to sedentary work was a significant limitation, which showed ALJ gave come credit to
doctor’s medical opinions).
In conclusion, the court finds that the ALJ’s consideration of Plaintiff’s credibility is
based on substantial evidence and that it is consistent with the Regulations and case law.
The Regulations define RFC as Awhat [the claimant] can do@ despite his or her Aphysical
or mental limitations.@ 20 C.F.R. ' 404.1545(a). AWhen determining whether a claimant can
engage in substantial employment, an ALJ must consider the combination of the claimant=s
mental and physical impairments.@ Lauer v. Apfel, 245 F.3d 700, 703 (8th Cir. 2001). AThe ALJ
must assess a claimant=s RFC based on all relevant, credible evidence in the record, >including
the medical records, observations of treating physicians and others, and an individual=s own
description of his limitations.=@ Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004) (quoting
McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). See also Anderson v. Shalala, 51 F.3d.
777, 779 (8th Cir. 1995). To determine a claimant=s RFC, the ALJ must move, analytically, from
ascertaining the true extent of the claimant=s impairments to determining the kind of work the
claimant can still do despite his or her impairments. Although assessing a claimant=s RFC is
primarily the responsibility of the ALJ, a A>claimant's residual functional capacity is a medical
question.=@ Lauer, 245 F.3d at 704 (quoting Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000)).
The Eighth Circuit clarified in Lauer, 245 F.3d at 704, that A>[s]ome medical evidence,= Dykes v.
Apfel, 223 F.3d 865, 867 (8th Cir. 2000) (per curiam), must support the determination of the
claimant's RFC, and the ALJ should obtain medical evidence that addresses the claimant=s
>ability to function in the workplace,= Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000). @
Thus, an ALJ is Arequired to consider at least some supporting evidence from a professional.@ Id.
See also Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010) (AThe ALJ bears the primary
responsibility for determining a claimant's RFC and because RFC is a medical question, some
medical evidence must support the determination of the claimant's RFC.@); Eichelberger, 390
F.3d at 591.
RFC is Aan administrative assessment of the extent to which an individual=s medically
determinable impairment(s), including any related symptoms, such as pain, may cause physical
or mental limitations or restrictions that may affect his or her capacity to do work-related
physical and mental activities.@ Social Security Regulation (SSR) 96-8p, at *2 (July 2, 1996).
Additionally, ARFC is the individual=s maximum remaining ability to do sustained work activities
in an ordinary work setting on a regular and continuing basis, and the RFC assessment must
include a discussion of the individual=s abilities on that basis.@ Id. Moreover, A[i]t is incorrect to
find that an individual has limitations or restrictions beyond those caused by his or her medical
impairment(s) including any related symptoms, such as pain.@ Id.
Although Plaintiff suggests the ALJ should have based his RFC determination only on
medical evidence, consistent with the case law, the ALJ determined Plaintiff’s RFC based on all
relevant evidence, including the medical evidence, testimonial evidence, and factors relevant to
Plaintiff’s credibility. See Lauer, 245 F.3d at 704; McKinney v. Apfel, 228 F.3d 860, 863 (8th
Cir. 2000) (claimant’s RFC should be based on all relevant evidence, including medical records,
observations of doctors and others, and claimant’s own description of her limitations); Singh,
222, F.3d at 451.
To the extent Plaintiff argues the ALJ should have included limitations beyond those
imposed by virtue of her being limited to sedentary activity, the ALJ was required to include
only limitations which he found credible in Plaintiff’s RFC. See McKinney, 228 F.3d at 863.
Indeed, the ALJ made credibility determinations, as discussed above, and determined that
Plaintiff’s assertions regarding her limitations were not entirely credible; the court has found the
ALJ’s credibility determination is based on substantial evidence.
As for Plaintiff’s argument that, when determining her RFC, the ALJ failed to consider
that doctors prescribed her medications (Doc. 18 at 22), the ALJ did consider that Plaintiff had
“pharmaceutical management.” Tr. 14-15. In fact, conditions which can be controlled by
treatment are not disabling. See Brown v. Astrue, 611 F.3d 941, 955 (8th Cir. 2010); Davidson
v. Astrue, 578 F.3d 838, 846 (8th Cir. 2009); Medhaug v. Astrue, 578 F.3d 805, 813 (8th Cir.
2009); Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (holding that if an impairment can be
controlled by treatment, it cannot be considered disabling); Estes v. Barnhart, 275 F.3d 722, 725
(8th Cir. 2002); Murphy, 953 F.2d 383, 384 (8th Cir. 1992); Warford v. Bowen, 875 F.2d 671,
673 (8th Cir. 1989) (holding that a medical condition that can be controlled by treatment is not
disabling); James for James v. Bowen, 870 F.2d 448, 450 (8th Cir. 1989).
As for Plaintiff’s argument that, when considering her failure to pursue treatment when
determining her RFC, the ALJ should have considered whether treatment would have restored
Plaintiff’s ability to work, the Regulation which Plaintiff’s cites, 20 C.F.R. § 404.1530, applies
when an ALJ denied benefits solely on the basis that a claimant failed to follow prescribed
In conclusion, the court finds that the ALJ’s determination that Plaintiff had the RFC for
sedentary work is based on substantial evidence and that it is consistent with the Regulations and
After determining Plaintiff’s RFC, as required by the Regulations, the ALJ
determined, based on the Guidelines and the testimony of a VE, that her past relevant work as a
collector was typically performed as sedentary; and that, therefore, as further testified by the VE,
Plaintiff could perform her past relevant work.5
20 C.F.R. ' 404.1560 states in relevant part in regard to a claimant=s ability to perform
past relevant work:
(b) Past relevant work ...
(2) Determining whether you can do your past relevant work. We will ask you for
information about work you have done in the past. We may also ask other people
who know about your work. (See ' 404.1565(b).) We may use the services of
vocational experts or vocational specialists, or other resources, such as the
"Dictionary of Occupational Titles" and its companion volumes and supplements,
published by the Department of Labor, to obtain evidence we need to help us
determine whether you can do your past relevant work, given your residual
functional capacity. A vocational expert or specialist may offer relevant evidence
within his or her expertise or knowledge concerning the physical and mental
demands of a claimant's past relevant work, either as the claimant actually
performed it or as generally performed in the national economy. Such evidence
may be helpful in supplementing or evaluating the accuracy of the claimant's
description of his past work. In addition, a vocational expert or specialist may
offer expert opinion testimony in response to a hypothetical question about
whether a person with the physical and mental limitations imposed by the
claimant's medical impairment(s) can meet the demands of the claimant's previous
work, either as the claimant actually performed it or as generally performed in the
(3) If you can do your past relevant work. If we find that you have the residual
functional capacity to do your past relevant work, we will determine that you can
still do your past work and are not disabled. We will not consider your vocational
factors of age, education, and work experience or whether your past relevant work
exists in significant numbers in the national economy. ...
Upon posing a hypothetical to the VE, the ALJ in the matter under consideration was not
required to include all of Plaintiff’s alleged limitations, but only those which the ALJ found
credible. See Martise v. Astrue, 641 F.3d 909, 927(8th Cir. 2011) (AThe ALJ's hypothetical
question to the vocational expert needs to include only those impairments that the ALJ finds are
substantially supported by the record as a whole.@); Guilliams v. Barnhart, 393 F.3d 789, 804
(8th Cir. 2005) (holding that a proper hypothetical sets forth impairments supported by
substantial evidence and accepted as true by the ALJ); Gilbert v. Apfel, 175 F.3d 602, 604 (8th
Cir. 1999) (AIn posing hypothetical questions to a vocational expert, an ALJ must include all
impairments he finds supported by the administrative record.@); Sobania v. Sec=y of Health,
Educ. & Human Servs., 879 F.2d 441, 445 (8th Cir. 1989); Rautio v. Bowen, 862 F.2d 176, 180
(8th Cir. 1988).
Where a hypothetical question precisely sets forth all of the claimant=s
impairments, the VE’s testimony constitutes substantial evidence supporting the ALJ=s decision.
Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011) (ABased on our previous conclusion ... that
>the ALJ's findings of [the claimant=s] RFC are supported by substantial evidence,= we hold that
>[t]he hypothetical question was therefore proper, and the VE's answer constituted substantial
evidence supporting the Commissioner=s denial of benefits.=@) (quoting Lacroix v. Barnhart, 465
F.3d 881, 889 (8th Cir. 2006)); Robson v. Astrue, 526 F.3d 389, 392 (8th Cir. 2008) (holding
that a VE=s testimony is substantial evidence when it is based on an accurately phrased
hypothetical capturing the concrete consequences of a claimant=s limitations); Wingert v. Bowen,
894 F.2d 296, 298 (8th Cir. 1990). As such, the court finds that the ALJ’s determinations that
Plaintiff can perform her past relevant work and, ultimately, that she is not disabled are based on
substantial evidence. See 20 C.F.R. ' 404.1560(b); Bowen v. City of New York, 476 U.S. 467,
471 (1986) (if the claimant is found to be able to perform the duties of her past relevant work,
then she is considered not disabled and therefore ineligible for benefits).
For the reasons set forth above, the court finds that substantial evidence on the record as a
whole supports the Commissioner’s decision that Plaintiff is not disabled.
IT IS HEREBY ORDERED that the relief sought by Plaintiff in her Complaint and
Brief in Support of Complaint is DENIED; Docs. 1, 18.
IT IS ORDERED that a separate judgment be entered incorporating this Memorandum
Dated this 24th day of April 2014.
/s/ Noelle C. Collins
UNITED STATES MAGISTRATE JUDGE
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